Monday, November 23, 2009

The custody dispute over Isabella Miller-Jenkins is the longest running and most notorious dispute between former same-sex partners over a child they planned for and raised together. You can read much of the background in a February 2007 Washington Post Magazine article, and the GLAD website has more recent updates.

Here are the barebones: Janet Jenkins and Lisa Miller were partners, living in Virginia, when they travelled to Vermont in 2000 and entered a civil union. Their daughter, Isabella, was born in 2002 after Lisa was inseminated by donor semen, and a few months later the family moved to Vermont. A year later, the couple split up, and Lisa moved back to Virginia with Isabella. She filed in Vermont to dissolve the civil union, and, in June 2004, the court granted custody of Isabella to Lisa with visitation rights to Janet. In July 2004, Lisa, who is no longer a lesbian, filed an action in Virginia seeking a ruling that she was Isabella’s only parent. She argued that Virginia should not recognize Janet as a parent because Virginia does not recognize a legal status for same-sex couples and Janet’s status derived from the civil union. Lisa lost, not because Virginia likes lesbian parents, but because only one state can have the right to decide the custody of any given child, and Vermont had that right with respect to Isabella.

The Vermont court held a trial on Isabella’s custody in April 2007. The court found that the decision on custody was a “close case,” but awarded custody to Lisa because Isabella was living with her in a stable environment. The court ordered visitation for Janet, including a specific schedule to reintroduce the contact that Lisa had blocked. Lisa has litigated the case through the trial and appellate courts of Vermont and Virginia for five years, losing in every instance. The Virginia courts have consistently ruled that Virginia respects the Vermont orders. Lisa is represented by Liberty Counsel, which makes a point of arguing for biological gay and lesbian parents against the nonbiological parents. Lisa has not obeyed the Vermont court orders.

Well, last Friday, the trial judge in Vermont transferred custody of Isabella to Janet. Here’s a newspaper account, but the ruling itself is not available online. The court handled the case like any other dispute between two parents, and the deciding factor was Lisa’s undermining of Janet’s relationship with Isabella. The harm from that, the judge ruled, would be worse than the short-term harm from Isabella’s relocation. The judge found that Janet would not undermine Lisa’s relationship with Isabella. Last Friday’s order follows an August court hearing at which Lisa appeared only through counsel.

The court spelled out in detail every court order that Lisa had violated, contempt of court findings, and every date there was court-ordered visitation which Lisa failed to provide. After some sporadic compliance in 2007, there were about 24 hours of parent-child contact in 2008 and that many so far in 2009. At the April 2007 trial, Lisa had testified that she would comply with the court’s visitation orders.

The judge also found that Lisa interfered with visits by Janet’s parents, who live in Virginia, and that she asked them not to refer to themselves as “Mom-Mom” and “Pop-Pop” to Isabella. (Isabella’s middle name is Ruth, after Janet’s mother). In addition, Lisa changed Isabella’s name to eliminate “Jenkins” without any notice to Janet.

The judge reviewed the legal standard very carefully, noting that the change of custody is not and cannot be for the purpose of punishing Lisa. The court found that Lisa’s willful and calculated non-compliance with the visitation orders was a significant change in circumstances. The court also noted the warning to Lisa in January 2009 that non-compliance could lead to a change in custody. At that hearing, Lisa said she would comply with the court orders. The court order continues:

“Ms. Miller has proven this testimony to be wholly untrue; she has willfully disobeyed every subsequent Court order regarding visitation and there has not been parent-child contact…since that date….The Court finds that it is Ms. Miller’s intent to cease all parent-child contact between Ms. Jenkins and IMJ.”

The judge also found that “Ms. Miller’s non-compliance with court orders and willingness to provide false promises under oath, cast doubt upon her ability to provide proper guidance for IMJ.”

After finding the significant change in circumstances, the court considered each of the factors necessary to determining Isabella’s best interests. The court found that any short-term difficulties the child would experience with the change of home, school, and community would not cause great harm; that Lisa’s alienation of Isabella from Janet and Janet’s parents was more harmful; and that therefore a change in custody was appropriate.

There have been many other acrimonious disputes between mothers who are former partners, but this stands out because the judge is insisting on adherence to court orders made in the child’s best interests. In other cases where the mother with custody has refused to comply with a court order, judges have been too quick to rule that there is no remedy the court can order. I think this is often because the court thinks of the visitation as an order for contact between the child and a non-parent, and in the end the court just doesn't think it all that important to enforce the order. The judge in Miller-Jenkins, however, recognizes that the child has two parents and is assessing both the law and the child's interests with that in mind.

The order sets a transfer date of January 1, 2010, at the home of Janet’s parents in Virginia. I’m not holding my breath. Janet is still litigating in Virginia, and I’m thinking that she is essentially counting on the Virginia authorities not to enforce this order. So far she’s been wrong on that.

6 comments:

Where, oh where, are the real advocates, court-appointed or otherwise, for the best interests of this child?

How in heaven's name can anyone actually believe that ripping a child from the only mother she essentially has known — there have been, what, maybe three or four brief visits with Jenkins since Isabella was a toddler? — and forcing her to live a half-dozen states away will be doing less harm than depriving her of a brief relationship she can't even remember?

Best interests of the child my foot! This is in the best interests of Janet Jenkins and the gay rights movement. Period! Does Judge Cohen think people are idiots???

I wonder if you would say the same thing if Lisa had been married to a man and they had conceived using donor semen. Every court in the country would recognize that the child had two parents and that interference with the relationship between the child and the other parent was bad for the child. Perhaps you do want to take on the basic doctrine of family law that the child's relationship with both parents should be preserved. But then you need to apply it to heterosexual married couples as well.

This is a breakthrough decision and much overdue. Both women are considered parents, with the focus on a best interest analysis for the child. While opinions may differ on what is in the best interest of this particular child, a change in custody is sometimes ordered by courts as a last resort when one parent engages in a pattern of behavior intent on destroying the child's relationship with the other parent. The key here is that same-sex parents are treated the same way as opposite-sex parents. Hopefully this decision will inspire other courts to take a firm stand against attempts to marginalize same-sex, non-biological parents.

"I wonder if you would say the same thing if Lisa had been married to a man and they had conceived using donor semen."

No, I would not. Apples and oranges. Man-woman marriage. In this case, Lisa Miller was within her rights to renounce the very condition upon which this civil union was entered into, i.e., her lesbian sexual preference at the time. And from what I know of this case, having followed it for a good while, she never really believed she was a lesbian. She surely isn't now.

Now, please show me any person who can renounce their very gender, chromosomes and all, and thereby annul that basis for a marriage. It requires phony surgical alteration or a mindset that accepts one gender over the other. All arbitrary and impossible to prove.

While I am one who believes adoption or remaining childless are better options under divine providence than going the donor sperm route in such cases, I also clearly believe marriage is a man-woman covenant, with or without children. In fact, I think The Manhattan Declaration articulates it well.

It was a poor decision to bring a child into the world in the way Miller and Jenkins did. Playing God. I believe we ought to limit the poor decisions to that one. Judge Cohen has made a worse one.

hi my name is chris iam 32, years old and was in a relanship with my parneter for 5 years she was pregant when i met her, and then i was the one who was in the dilvery room i cut the cord and the child got my last name and my grandma middle name, the bio -mother was a recovering addidce the bio father is a low life, and i have raised this girl since birth, and now the child is in the care of dcfs in rockford illinois, and the bio mother went back too drugs and the my kid is sitting in foster care for 2 years and the i got weekly calls and 1 a month phone call in the last court hearing on may31 dcfs said i have no chance that i will be able too have her or get the same rights as the bio parent i asked why and all i could get is cause i am just one of her parnters and that there is no way i will have rights the bio mother has made it clear that she wants me too have rights over her kid but dcfs has made it clear that they will try too keep me out of this hearings and can someone please help me and see what i can do and what right do i have, i live in colorado also get this the foster parent has got it to where are kid cant call us mom from one and that the child now has brother and sister in the foster care and grandparents but the law states that a focter paents is not supose too get close too the child like that since they are tryig too get her back with the mother so why is ok for the foster mom too get away with things ps also the foster care mom and dcfs are like really close

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.